How Police Unions and Arbitrators Keep Abusive Cops on the Street
Officers fired for misconduct often appeal the decision and get reinstated by obscure judges in secretive proceedings.
When Frank Serpico, the most famous police whistleblower of his generation, reflected on years of law-enforcement corruption in the New York Police Department, he assigned substantial blame to a commissioner who failed to hold rank-and-file cops accountable. That's the classic template for police abuse: misbehaving cops are spared punishment by colleagues and bosses who cover for them.
There are, of course, police officers who are fired for egregious misbehavior by commanding officers who decide that a given abuse makes them unfit for a badge and gun. Yet all over the U.S., police unions help many of those cops to get their jobs back, often via secretive appeals geared to protect labor rights rather than public safety. Cops deemed unqualified by their own bosses are put back on the streets. Their colleagues get the message that police all but impervious to termination.
That isn't to say that every officer who is fired deserves it, or that every reinstated cop represents a miscarriage of justice. In theory, due process before a neutral arbiter could even protect blue whistleblowers from wrongful termination. But in practice, too many cops who needlessly kill people, use excessive force, or otherwise abuse their authority are getting reprieves from termination.
Let's begin in Oakland, California, where the San Jose Mercury News reports that "of the last 15 arbitration cases in which officers have appealed punishments, those punishments have been revoked in seven cases and reduced in five others."
Hector Jimenez is one Oakland policeman who was fired and reinstated. In 2007, he shot and killed an unarmed 20-year-old man. Just seven months later, he killed another unarmed man, shooting him three times in the back as he ran away. Oakland paid a $650,000 settlement to the dead man's family in a lawsuit and fired Jimenez, who appealed through his police union. Despite killing two unarmed men and costing taxpayers all that money, he was reinstated and given back pay.
Another Oakland police officer, Robert Roche, was present at the 2011 Occupy protest where Iraq War veteran Scott Olsen, a protester, was shot in the head with a lead-filled beanbag, fracturing his skull and causing brain damage. After Olsen collapsed onto the asphalt, a group of fellow protesters quickly gathered around to help the wounded man. That's when Roche tossed a flash grenade in their midst.
Olsen later spoke out about the incident in the video clip below (ignore the part where he calls the officer a "serial killer," a proposition for which I can find no evidence, and focus on the images of the incident itself, which is rendered appropriately):
Roche was fired after being identified as the perpetrator, but appealed with the help of his union and was reinstated. Federal Judge Thelton Henderson later ordered an investigation of the Oakland Police Department's disciplinary appeals process, declaring that "imposition of discipline is meaningless if it is not final."
"In Philadelphia, an inquiry was recently completed on 26 cases where police officers were fired from charges ranging from domestic violence, to retail theft, to excessive force, to on duty intoxication," Adam Ozimek writes in a Forbes article on reforms to policing. "Shockingly, the Police Advisory Committee undertaking the investigation found that so far 19 of these fired officers have been reinstated. Why does this occur? The committee blamed the arbitration process."
One case is cited as a highlight. In September 2012, Lieutenant Jonathan Josey was caught on a cell-phone video doing this:
He was fired, appealed as permitted by his labor agreement, got reinstated, and retained his rank.
Alex Zimmerman of the Pittsburgh City Paper has details about police arbitration in his town:
In June 2008, after downing six drinks as part of his wife's birthday celebration on the South Side, Paul Abel was accused of accidentally shooting a 20-year-old man he was trying to pistol-whip. In December 2009, Eugene Hlavac was accused of slapping his ex-girlfriend (and his son's mother) so hard that he dislocated her jaw. And in November 2010, Garrett Brown was accused of running two delivery-truck drivers off the road in a fit of rage—an allegation similar to those made against Brown in at least one other late-night traffic encounter.
Each of these men, who were all Pittsburgh Police officers at the time of the incidents, shares a common experience: They all were fired, charged criminally, cleared of those charges ... and then got their jobs back through arbitration. And they're not alone. Nine officers were fired by the city between 2009 and 2013, but five of those terminations were overturned by an arbitrator, according to Pittsburgh Public Safety Director Mike Huss. (In all, says Huss, the city filed 269 disciplinary-action reports in that period, 33 of which involved suspensions.) In the cases where terminations were appealed by the police union through arbitration, officers got their jobs back close to 70 percent of the time, according to figures provided by Huss.
A police official sums things up: "Why would you employ a police officer that pistol-whipped and accidentally shot someone on his night off? The common person says, ‘This is crazy.' And they're right: It is crazy. It's just never gotten enough attention."
What does the other side say? Here's the perspective of Bryan Campbell, "a veteran lawyer for the Pittsburgh's chapter of the Fraternal Order of Police," commenting on the cop who accidentally shot a man he was trying to drunkenly pistol-whip:
Abel has been widely held up as an example of an officer who shouldn't have gotten his job back, but Campbell says the picture is more complicated. Though Abel was off duty when he shot someone on the street, Campbell explains, he was sucker-punched and was only trying to arrest the culprit. It just didn't turn out to be the guy he shot. "All he was trying to do is arrest somebody who was guilty of an assault," Campbell says, although he adds, "Should he have taken his gun out in those circumstances? Probably not."
He shot a totally innocent person while drunk ... but there was a different guy somewhat nearby that was guilty of assault, which is supposed to make it all less egregious. I wonder how a police officer would treat that explanation if a non-cop tried it.
Another case comes from Sarasota, Florida. "An internal investigation had concluded that Scott Patrick violated department policies when he punched, choked, and cursed at Jason B. Dragash, then 29, while arresting him on August 4, 2012, at the Ivory Lounge nightclub on Main Street," the Sarasota Herald-Tribune reported. "The incident was recorded on video, in which Patrick can be seen repeatedly punching Dragash, who was on the floor surrounded by other police officers. The resulting criminal investigation stated that Patrick gave misleading information to detectives investigating the incident, and evidence for a charge of battery was sent to the State Attorney's Office. Prosecutors declined to take the case."
Here's how the police chief at the time characterized the incident: "First, he punched the individual an excessive number of times. Second, he had an opportunity to stop after the person's arm was pinned but failed to do so. Third, he made a statement immediately after the incident that 'I should have killed him.'"
After Patrick appealed his punishment with the help of his police union, an arbitrator ruled that he should have been suspended for 30 days rather than being fired.
In Ballinger, Texas, a policeman was fired for uttering racial slurs. But "there was a procedural error in the termination paperwork filed," so he got his gun and badge back. (It isn't clear if a police union played any role in this particular case.)
Police officer Phillip Reynolds of Centralia, Washington, has an incredible story:
A 2011 investigation into Reynolds’ frequent use of his Taser found he excessively used it on multiple people, many of whom were involved in minor, non-violent offenses, for extended periods of time—sometimes up to 30 seconds. The investigation also found he was dishonest in his police reports about the circumstances of using the Taser. As a result, Reynolds was suspended for two weeks without pay. He returned to duty and was ordered to undergo additional training. The 2011 suspension, however, was not Reynolds’ first warning about his behavior. By that point, Reynolds had already received multiple verbal and written warnings about other policy violations including reckless behavior, failing to show up for trial and arresting someone without probable cause.
In the police chief’s letter of reprimand to Reynolds, dated July 12, 2011, it stated: “This is truly the final opportunity for you to make some fundamental changes … Future violations of departmental policy will be dealt with in the most severe terms and may result in your dismissal from employment.”
Despite that warning, Reynolds’ attitude reportedly grew worse in 2011. According to a legal brief submitted to the arbitrator by the city defending the termination, Reynolds spent the large majority of his shift hiding out, avoiding responding to calls or interacting with his coworkers and supervisors. In January 2012, the administration launched another internal investigation against Reynolds and found he violated eight additional policies, including insubordination, cooperation with other employees and failing to aid other officers.
He then was fired.
His union stood by him, per their assigned role.
The arbitrator upheld the two-week suspension—that is to say, the obviously inadequate punishment for needlessly tasing people—but overruled his termination. Fighting to protect officers like Reynolds is part of what police unions do. Some on the left are starting to realize the problem this presents for solidarity.
Miami police officer Reynaldo Goyos shot and killed an unarmed 28-year-old, Travis McNeil, as he sat in his car. Lynette Holloway of The Root wrote about the case. A review by the police department ruled the shooting "unjustified" and stated that the physical evidence was inconsistent with the officer's account. He was fired, appealed, and was reinstated, at which point a police-union official said this about the tragedy: "Imagine calling the police and in the face of danger, our police officers run and hide. We have no duty to retreat and as police officers we don’t shy away in the face of danger. Unlike some of our policymakers, we aren’t cowards."
In Narberth Borough, Pennsylvania, the people's elected representatives voted unanimously to fire police officer Michael Gannon for what they called "alleged neglect or violation of official duties and inefficiency, neglect, intemperance, disobedience of orders and conduct unbecoming of an officer.” This news story doesn't outline his transgressions with any more specificity, but the terms of his reinstatement may provide clues:
The ruling also said that the reinstatement was on a last-chance basis and “acknowledging that any further misconduct or violation of department rules of regulations will subject him to immediate termination.” Finally, the ruling ordered Gannon to “remain sober, to be subjected to random alcohol testing, and to provide the Borough with monthly reports from his treatment provider vouching for the Grievant’s sobriety and confirming his ongoing treatment.”
While a sergeant, David Woolverton was fired for his role in a police sex scandal in Lakeland, Florida. His chief testified that he has "a history of sexual misconduct or allegation [sic] of this behavior that goes back a number of years." The local newspaper reports that 15 years before, he was "accused and disciplined for having a relationship with a high school student who was interning with the department." He admitted to having sex with a colleague while in his vehicle at a city park, but denied that colleague's allegations that "he forced her to have sex with him on top of her desk at LPD headquarters or that they had sex while on duty." State Attorney Jerry Hill wrote a letter declaring that she would no longer accept his testimony in criminal cases, making him useless as a street officer.
So by what logic did this man get his job back (with a year of back pay)?
In Woolverton's case, arbitrator Harry Mason wrote that Woolverton received a harsher penalty than some other officers in similar situations. One of those, former Lt. Shawn Collins, was demoted in 2012 after investigators learned he had sex with an officer applicant and appeared to aid her hiring.
Collins is now an officer.
These are just a small selection of cases drawn from recent headlines. Yet they alone illustrate why reform is so important. Would you want your town policed by these men?
Society entrusts police officers with awesome power. The stakes could not be higher when they abuse it: Innocents are killed, wrongly imprisoned, beaten, harassed—and as knowledge of such abuses spreads, respect for the rule of law wanes. If police officers were at-will employees (as I've been at every job I've ever held), none of the cops mentioned above would now be walking the streets with badges and loaded guns. Perhaps one or two of them deserved to be exonerated, despite how bad their cases look. Does the benefit of being scrupulously fair to those individuals justify the cost of having more abusive cops on the street?
I'd rather see 10 wrongful terminations than one person wrongfully shot and killed. Because good police officers and bad police officers pay the same union dues and are equally entitled to labor representation, police unions have pushed for arbitration procedures that skew in the opposite direction. Why have we let them? If at-will employment, the standard that would best protect the public, is not currently possible, arbitration proceedings should at a minimum be transparent and fully reviewable so that miscarriages of justice are known when they happen. With full facts, the public would favor at-will employment eventually.